Citation Nr: 1330914 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 10-46 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from August 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied the Veteran's claim for service connection for PTSD. The Veteran originally requested a travel board hearing in his November 2010 substantive appeal. However, in a January 2011 statement, the Veteran withdrew his request for a Board hearing. Subsequently, in July 2012, the RO certified the Veteran's appeal to the Board and provided notice to the Veteran of his right to submit additional evidence or argument or to request a hearing with the Board. See 38 C.F.R. § 20.1304 (2013). In August 2012, the Veteran requested a personal hearing before a Veterans Law Judge. He was scheduled for a travel board hearing in August 2013. However, in an August 2013 statement, the Veteran withdrew his hearing request due to sudden illness. The Veteran's hearing requests are therefore deemed withdrawn. 38 C.F.R. § 20.704(e) (2013). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required. REMAND Although the Board sincerely regrets the delay, after a close review of the record, the Board observes that further development is required prior to adjudicating the Veteran's claim. In July 2009 and August 2009 statements, the Veteran's private treating physicians indicated that the Veteran had PTSD that was a result of his traumatic experiences during service. On VA examination in October 2010, the Veteran claimed that he had PTSD as a result of witnessing an American ship being sunk by Japanese submarines during an enemy attack. The Veteran reported that he feared for his life after seeing a ship get hit by 2 torpedoes. He stated that he witnessed men burning and drowning a mile away. He related that it could have been them. He related that he was very shaken by the event and that he had a very difficult time sleeping for years because of the event. The examiner determined that the Veteran did not have an Axis I diagnosis of PTSD. He explained that the Veteran possibly had presented with PTSD for a time following the enemy attack in service, but that he currently did not present with enough symptoms to warrant a diagnosis of PTSD. Specifically, the examiner found that the Veteran did not have persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, nor did his disturbance cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiner indicated that the Veteran had a case for PTSD in that he witnessed a very dangerous event where many men died and where it very easily could have been him that died. He was helpless to prevent the event from occurring, but it also seemed that the event was quite far enough away (one mile), was dealt with so quickly, and was so improbable of even happening in the first place that the Veteran did not have nearly as traumatic an experience as one might have had in actual combat. The examiner reported that the fact that the Veteran had functioned so well occupationally and socially all his years after leaving service, up to and including the current time, diminished the effects that the in-service event actually had on his life, which in turn diminished a diagnosis of PTSD. Subsequent to the October 2010 VA examination, VA medical records dated from April 2011 to March 2013 show that the Veteran's PTSD was an active problem and that he received treatment for PTSD with a private behavioral health specialist. In an August 2013 statement, the Veteran's representative contended that the August 2010 VA examiner had not considered the possibility that the Veteran had PTSD with delayed onset, as stated in the DSM-IV. He also indicated that although the Veteran had not presented himself as having been affected by PTSD throughout his life, the Veteran may have underestimated his symptoms for fear of being labeled as mentally ill and attempted to present himself as not being affected by his traumatic in-service event. Regarding the distance of the sinking ship, the Veteran's representative alleged that the Veteran may have overestimated the distance of the sinking ship in proximity to his own ship, which made the traumatic experience more traumatic than it was perceived to be. Finally, the Veteran's representative argued that although the Veteran's PTSD symptoms may have seemed diminished at the time of the October 2010 examination, he currently met the criteria for a PTSD diagnosis. Given that the Veteran is essentially contending that his disability has worsened and that he now meets the criteria for a PTSD diagnosis, and the recent evidence suggesting that the Veteran had active PTSD for which he was receiving treatment, the Veteran should now be afforded a new VA examination with medical opinion from a physician clarifying whether the Veteran has a current PTSD diagnosis that is related to his in-service event of witnessing an American ship being sunk by Japanese submarines during an enemy attack. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Additionally, the April 2011 to March 2013 VA medical records reflecting active PTSD and private treatment for PTSD were associated with the claims file subsequent to the October 2010 statement of the case. This evidence, however, was not considered by the Agency of Original Jurisdiction. As no supplemental statement of the case has been issued with respect to these medical records, this evidence must be discussed in a supplemental statement of the case. See 38 C.F.R. § 19.31 (2013). Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). In particular, the Veteran's April 2011 to March 2013 VA medical records reveal that he was receiving ongoing treatment for PTSD with a private behavioral health specialist. However, the most recent private treatment records in the claims file are dated in July 2009. As these private treatment records are pertinent and may be helpful to the Veteran's claim for service connection for PTSD, they should be obtained. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for PTSD. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. Appropriate efforts must be made to obtain all available VA treatment records. The Veteran should specifically be asked to provide the appropriate release form for the private behavioral health specialist who has treated him for his PTSD since 2009. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA examination to obtain a medical opinion clarifying whether he has a current PTSD diagnosis meeting the criteria of DSM-IV that is related to his period of service. The claims file must be provided to and be reviewed by the examiner. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. a) State whether it is at least as likely as not (at least a 50 percent probability) that the Veteran has a current PTSD diagnosis. b) If a diagnosis of PTSD is made, the examiner should then state whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's stressor of witnessing a submarine sink and seeing men burn and drown is sufficient to support a diagnosis of PTSD. c) Then state whether it is at least as likely as not (at least a 50 percent probability) that the Veteran's symptoms are related to the claimed stressor of witnessing a submarine sink and men drowning and burning. d) If a psychiatric diagnosis other than PTSD is found, state whether it is at least as likely as not (at least a 50 percent probability) that such is related to service, including seeing a submarine sink and seeing men burn and drown. e) The examiner should consider the Veteran's lay statements with regard to onset and continuity of symptomatology of his disability. The examiner should also provide a rationale for the conclusions reached. If the examiner believes that an opinion cannot be provided without resorting to speculation, then he/she must provide a detailed medical explanation as to why this is so. 3. After the development requested above has been completed, the record should again be reviewed. If any benefits sought on appeal remain denied, the Veteran and his representative should be furnished with a supplemental statement of the case, including consideration of April 2011 to March 2013 VA medical records as well as any other medical records that are added to the claims file, and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).